{1} Plaintiffs Florian Castillo and Molly Martinez (Plaintiffs) sued the City of Las Vegas (City) for personal injury and damage caused to their home by a backup in the city sewer system. The jury awarded Plaintiffs damages for the injury to the property and awarded Mr. Castillo damages for the emotional distress that he suffered as a result of the property damage. The City appeals, raising four claims of error. We affirm the judgment as to the property damage, but we reverse the judgment as to the emotional distress damages because in this case, negligent property damage is not a basis for an emotional distress damages award.
I. BACKGROUND
{2} Plaintiffs lived together as a couple in a home owned by Mr. Castillo. In September 2003, the City’s sewer system backed up, causing a pool of sewer water to accumulate under the bathroom floor of the home. Plaintiffs believed that this pool formed mold and caused the walls of the home to shift. The City admitted liability for the incident, and the only issue tried in the trial court was damages. The case was complicated by the fact that the home had been damaged by a prior sewer backup in 2002 and then later by a flood in 2005. Plaintiffs did not claim damages against the City for either of those incidents, and one of the primary difficultiеs at trial was sorting out what damage was caused by which incident because the jury was only to award damages for the 2003 backup.
{3} At trial, Mr. Castillo testified that he and Ms. Martinez moved out of the home after the 2002 backup but that at that time they intended to return. After the 2003 backup, however, he gave up on the idea of fixing the home and moving back in because the home seemed beyond repair. Plaintiffs introduced the expert testimony of two appraisers: one who had appraised the home in 2000, prior to any of the damage and one who had appraised it in 2005, after both sewer backups and the floоd. The City relied on cross-examination to attempt to show that the damage to the home was caused primarily by the 2002 backup and the 2005 flood. The City did not call any witnesses to testify regarding the damage to the home as a result of the 2003 backup or how the 2003 backup, as opposed to the 2002 backup or the 2005 flood, affected the value of the home.
II. DISCUSSION
{5} The City makes four arguments on appeal: (1) Ms. Martinez did not have standing to sue the City, (2) the trial court improperly admitted expert testimony, (3) the trial court did not properly instruct the jury about calculating damages, and (4) the trial court improperly allowed the jury to award damages for emotional distress. We address each argument in turn.
A. Standing
{6} Before trial, the City moved for summary judgment on Ms. Martinez’s claims and argued that she lacked standing to bring suit (1) because she was not the title owner of the home and (2) because she stated in her deposition that her emotional distress was caused by Mr. Castillo’s depression and not by the property damage. The trial court apparently never ruled on the motion for summary judgment, but the City renewed its argument in a motion for a directed verdict. The trial court denied the motion as to standing but granted the motion as to Ms. Martinez’s emotional distress claim. The result of the trial court’s ruling was that Ms. Martinez could not recover damages for emotional distress, but thаt she could remain as a plaintiff; thus, the only remaining claims were for damage to the home and damages for Mr. Castillo’s emotional distress. The City appeals the denial of its motion and argues that Ms. Martinez did not have standing to sue for damage to the property. This is a question of law that we review de novo. See ACLU v. City of Albuquerque,
{7} “[A]s a matter of judicial policy if not of jurisdictional necessity, our courts have generally required that a litigant demonstrate injury in fact, causation, and redressability to invoke the court’s authority to decide the merits of a case.” Id. ¶ 10. The City argues that Ms. Martinez suffered no injury in fact and, as a result, she had no standing to participate in the cause of action. We observe that the jury awarded no separate damages to Ms. Martinez. Rather, the award for actual damages went to both Plaintiffs, and the award for emotional damages went solely to Mr. Castillo. Although the City suggests that the jury awarded the actual damages to a “family” and that the award might have been less had Ms. Martinez not been a party, there is no evidence to support such speculation. To the contrary, the jury was instructed that the measure of damages was the “[l]oss of use and loss of value to the residence.”
{8} If this Court wеre to reverse the trial court’s determination on the issue of Ms. Martinez’s standing, we would remand for the trial court to dismiss her from the case. We would not, however, require a new trial because the damage awards would not be affected by her absence as a party. See Rule 1-061 NMRA (“No error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice.”); Fahrbach v. Diamond Shаmrock, Inc.,
{9} The City argues that the trial court erred in admitting testimony from two different appraisers whose appraisals did not reflect the value of the property either immediately before or immediately after the 2003 backup. We review the admission of evidence for an abuse of discretion. See Coates v. Wal-Mart Stores, Inc.,
{10} The City argues that Leigh v. Village of Los Lunas,
{11} In this case, Plaintiffs introduced testimony from an appraiser who appraised the property in 1999 and then again in 2000— prior to any of the three incidents that damaged their home. In 2000, the appraiser valued the home at $80,000. A second appraiser testified that in 2005, after the two sewer backups and the flood, the house was worth $37,000. Neither expert testified specifically about what the value of the house would have been immediately before the 2003 backup, but after the damage done by the 2002 backup, or immediately after the 2003 backup, but before the 2005 flood. The City argues that because the appraisers did not value the home immediately befоre and after the 2003 backup, their testimony was prohibited under Leigh. We disagree and conclude that Leigh is distinguishable on two bases.
{12} First, we note that in Leigh, this Court evaluated the appraiser’s report in the context of a “taking of a restrictive covenant.” Id. ¶ 18. The general rule stated in Leigh is that “[d]amages for the partial taking of property by an easement are measured as the difference between the fair market value before and after the taking.” Id. ¶ 13. It is well established that money damages in a takings claim are calculated based on a jury determination of the “fair market value” of the property in question. County of Dona Ana ex rel. Bd. of County Comm’rs v. Bennett,
{13} Second, the appraisals conducted in this case provided relevant information about
{14} Additionally, the expert in Leigh conducted a “with and without” analysis — the value of the property with a drainage pond and the value without the drainage pond.
C. Jury Instructions
{15} The City argues that the jury was improperly instructed to consider Mr. Castillo’s loss of use of the property and that the trial court improperly refused to instruct the jury about the distinction between permanent and temporary damage to real property. We consider each challenge in turn and begin with the loss of use instruction.
1. Loss of Use
{16} The trial court instructed the jury that it could award Plaintiffs damages for “[l]oss of use and loss of value” to the home. The City raises three different arguments regarding the claimed error, but does not indicate how any of these were preserved. See Rule 12-213(A)(4) NMRA (requiring an appellant to provide “a statement explaining how [each] issue was preserved in the court below”). As we conclude that the City preserved only the argument that the evidence did not support a loss of use instruction, we limit our analysis to that contention.
{17} The propriety of a jury instruction is a mixed question of fact and law, which we review de novo. See State v. Gaines,
{18} The City argues that there was no evidence to support a loss of use instruction because Plaintiffs had moved out of the home in 2002, after the first sewer backup. The City contends that because Plaintiffs no longer lived in the home at the time of the 2003 backup, that backup could not havе caused them any loss of use. Mr. Castillo, however, testified that he intended to return to the home after the 2002 backup and that it was only after the 2003 backup that he gave up on his plans to restore the home and move back in. Viewing this evidence in the light most favorable to Plaintiffs and drawing all reasonable inferences in their favor, one could conclude from this testimony that had the 2003 sewer backup not occurred, Plaintiffs would have gone back to, repaired, and
2. Temporary Versus Permanent Damage to Property
{19} At trial, the court rejected two of the City’s proposed jury instructions on damages to the property. These instructions were based on Amoco Production Co. v. Carter Farms Co.,
{20} Even if it were error for the trial court to refuse these instructions, the City has not demonstrated that it was prejudiced thereby — a requirement when seeking reversal. See Benavidez v. City of Gallup,
D. Emotional Distress Damages
{21} Mr. Castillo presented evidence at trial that he was emotionally distressed by the damage caused to his home, and the trial court instructed the jury that it could award Mr. Castillo damages for his mental anguish. The jury awarded him $10,000 in emotional damages. The City appeals this award, arguing that New Mexico law does not permit a plaintiff to recover damages for emotional distress caused by negligent damage tо property. This is a question of law that we review de novo. See Montoya v. Pearson,
{22} Our courts have limited the availability of damages for emotional distress. See Williams v. Stewart,
{23} Recovery for negligent infliction of emotional distress (NIED) is limited to situations in which “a bystander who [suffers] severe emotional shock as a result of witnessing a sudden, traumatic event that causes serious injury or death to a family member.” Fernandez,
{24} The tort of intentional infliction of emotional distress (IIED) “provides recovery to victims of socially reprehensible conduct.” Baldonado,
{26} Our Supreme Court has also “consistently allowed recovery for emotional harm in intentional tort cases.” Chavez,
{27} The emotional damages claimed by Mr. Castillo in the present case bear no relation to any of the claims described in the preceding paragraphs — those in which emotional distress claims were permitted. Mr. Castillo alleged that as a result of the flooding, he was forced to live elsewhere and that he suffered “serious physical, psychological and emotional injuries.” During his deposition, Mr. Castillo acknowledged that he did not suffer a physical injury. When asked at trial, Mr. Castillo said that the damage to his house made him feel “terrible — just likе losing part of the family.” Although we are sympathetic, we have explained before that “[t]his is precisely the type of emotional distress that our cases require to be suffered by people living in society without resorting to the courts for redress.” Jones v. Schoellkopf
{28} This case more closely resembles cases in which the courts have determined that a plaintiffs loss can be adequately compensated by economic damages. See Akutagawa,
{29} Other jurisdictions have reached similar results. City of Tyler v. Likes,
Because a plaintiff whose property has been harmed can ordinarily recover fully for that loss through economic damages, our reluctance to leave a legally injured plaintiff with no remedy at all, which has rightfully influenced courts to look favorably on awarding mental anguish damages, does not come into play in eases where the primary injury is tо property.
Id.
{30} Similarly, in Iannotti v. City of Amsterdam,
{31} We note that Mr. Castillo does not argue that his home had an intrinsic value apart from the market value — that his sentimental attachment to his home justified a damage award greater than the market value of the home. Our Supreme Court has considered cases in which lost property has intrinsic value that cannot be compensated by the market value of the property. In thоse cases, the Court determined that the value of the property to its owner is relevant to determine the damages award for the loss of that property. See Rutherford v. James,
{32} Mr. Castillo did not establish physical injury to himself or intentional misconduct on the City’s part, and he did not satisfy the elements of bystander recovery. In addition, Plaintiffs do not assert that the home had greater intrinsic value than the appraisals indicated. As a result, we conclude that the $30,000 damage award was sufficient to “provide full and just compensation” and that there was no legal basis in this ease on which to award emotional damages. Hubbard,
III. CONCLUSION
{33} For the reasons stated in this opinion, we reverse the judgment of $10,000 for Mr. Castillo’s emotional distress and affirm the judgment as to the damages to the property.
{34} IT IS SO ORDERED.